Can I collect my ex-husbands SSI benefit even though his parental rights were terminated?

Question Details:

My son's bio father never paid support. He willing "gave up" his rights in order to avoid paying. My husband adopted him when he was 7. My attorney told me at the time of the adoption that bio father was still on the hook for the past support due and we were entitled to collect it up until the time the papers were signed. So my son is due 7 years of support from bio dad. The attorney also said we could collect it by any means, garnishment, benefits, liens. Unfortunately bio dad just died. Social Security turned down app for benefits for my son. Can we appeal this and get the money owed?

Asked 12/14/2009 under Divorce, Marriage, Alimony | 277 View(s) | More Legal Topics

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Divorce, Marriage, Alimony Law Answers

Timothy McCormick / Libris Solutions Answered 2 years ago | Contributor This attorney is licensed in California

It is unlikely you can get anywhere with this.  First off there is a three-year limitations on asking for support.  So unless there was already a support order in place on the date of the adoption, the bio father was only on the hook for three years back support at that time, and every day that passed without you filing for an order for back support reduced the amount of back support he could be ordered to pay.  So as of the three-year anniversary of the adoption any claim for back support was gone.  If it is less than three years since the adoption, you can file now for a support claim against his estate, if he left anything, but that's it.

If you did already have an existing support order at the time of adoption, again your claim is against the estate at this point.  If the bio father had been receiving SSI payments while he was alive, you could have garnished those payments just like wages, but SSI doesn't pay anything to the decedent when he dies, nor to his estate, only survivor benefits.  So there is nothing from SSI owed to the bio father for you to attach.  And of course your son's rights to survivor benefits transferred from the bio father to your husband when the adoption happened, so your son isn't entitled to survivor benefits unless his legal father dies while he qualifies.

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